State v. Faulkner, 862, September Term, 2009.
| Decision Date | 05 January 2010 |
| Docket Number | No. 862, September Term, 2009.,862, September Term, 2009. |
| Citation | 985 A.2d 627,190 Md. App. 37 |
| Parties | STATE of Maryland v. John FAULKNER. |
| Court | Court of Special Appeals of Maryland |
Douglas D. Guidorizzi (Douglas F. Gansler, Atty. Gen., on brief), for Appellant.
Stanley H. Needleman (Richard W. Winelander, on brief), Baltimore, for Appellee.
Panel: DAVIS, EYLER, DEBORAH S. and ZARNOCH, JJ.
In this appeal, the State challenges an order by the Circuit Court for Baltimore City suppressing evidence of narcotics trafficking and firearm-related offenses recovered from an apartment used by John Faulkner, the appellee.1 The State presents a single question for review, which we have rephrased slightly:
Did the circuit court err in granting the motion to suppress when there was a substantial basis for the issuing judge to find probable cause to issue the warrant and when, even if not, the police officers executed the warrant in good faith?
For the reasons that follow, we answer "Yes" and therefore shall reverse the suppression order and remand the case to the circuit court for further proceedings.
The search warrant at issue here was the product of a month-long investigation by detectives with the Organized Crime Division of the Baltimore City Police Department into suspected narcotics trafficking by Faulkner. The information collected during the investigation formed the basis for an affidavit by Detectives George Davis and Mark Rutkowski ("detectives" or "affiants") in support of applications for an arrest warrant for Faulkner and five search warrants: two for vehicles used by Faulkner, one for a business owned and operated by him, and two for residential dwellings linked to him. The affidavit set forth the following relevant facts.
In early July 2007, Detectives Davis and Rutkowski began investigating suspected narcotics trafficking in certain areas of Baltimore City by a person they knew only as "Poops." A police registered confidential informant ("CI") gave the detectives information that "Poops" was selling bulk quantities of cocaine out of Jaffes Package Goods and Groceries ("Jaffes"), a store he owned and operated at 1616 E. Oliver Street. The CI also informed them that "Poops" was using a green 1994 Mitsubishi Galant with a cream colored left fender ("Mitsubishi") to transport the cocaine to various distribution points.
To verify the information from the CI, the detectives began surveillance of Jaffes. They saw a Mitsubishi matching the description provided by the CI parked in front of Jaffes; and then saw a black male approximately 5' 8" to 5' 10" tall and between 185 and 200 pounds exit the store and enter the vehicle. A check of the vehicle's license plate number revealed that Faulkner was the Mitsubishi's owner and that his registered address was 435 E. 28th Street, in Baltimore City.
The detectives met with the CI and showed him a photograph of Faulkner obtained from the Maryland Motor Vehicle Administration. The CI "immediately and without hesitation" identified the person in the photograph as "Poops." The CI said he did not know any personal information about "Poops," but he could engage in a controlled purchase of narcotics from him. The detectives decided to consider the idea after further investigation.
By entering Faulkner's name into various law enforcement databases, the detectives confirmed Faulkner's registered home address of 435 E. 28th Street. They also uncovered a second address linked to Faulkner: 5722 Plainfield Avenue, Apartment F ("the Plainfield Apartment"). They learned that on October 3, 2005, Faulkner had opened a Baltimore Gas and Electric account, which still was active, for the Plainfield Apartment. Police set up surveillance of the E. 28th Street address and the Plainfield Apartment. More than ten times in the month of July 2007, they witnessed Faulkner drive to the Plainfield Apartment in the evening between 11:00 p.m. and midnight. They concluded from these observations that Faulkner was using the Plainfield Apartment as a residence without identifying it as such.
After another meeting with the CI, police decided to move forward with a controlled buy of cocaine from Faulkner. During the third week of July 2007, the CI contacted Faulkner to arrange a time and a location in Baltimore City for the purchase. (The precise location is not revealed in the record, presumably to protect the CI's identity.) With police in place to observe the transaction, the CI went to the agreed meeting point. Faulkner arrived in the Mitsubishi. He was accompanied by a black female in her late 20s or early 30s. The CI made a successful purchase of cocaine from Faulkner, who then drove directly to Jaffes.
Over the following weeks, police on "many occasions" observed Faulkner drive to the Plainfield Apartment after closing Jaffes. Sometimes Faulkner would leave Jaffes in the Mitsubishi. Other times, a black female with physical characteristics similar to those of the woman present at the controlled buy would arrive in a silver 1997 Audi ("Audi"), exit the vehicle, and re-enter on the passenger side to allow Faulkner to drive the car.
On one occasion, police followed the Audi to a parking area on Guilford Avenue, under the Jones Falls Expressway. Faulkner exited the vehicle carrying a dark plastic bag and entered the passenger side of a waiting Ford automobile operated by a black male. Faulkner spent several minutes in the Ford in "animated conversation" with the driver. When he exited the Ford, he no longer was carrying the plastic bag but instead was holding U.S. currency, which he placed in his pants pocket. He and the unidentified black female then drove to Jaffes. Based on the affiants' experience and training, they believed the interaction they had witnessed beneath the Jones Falls Expressway was an illegal drug transaction.
During the fourth week of July 2007, under police supervision, the CI made a second controlled purchase of cocaine from Faulkner. This time, Faulkner arrived alone at the meeting place (again undisclosed), in the Mitsubishi. After completing the sale, he drove to Jaffes.
A criminal background check of Faulkner revealed that he was arrested in 2004 on the charge of murder in the first degree "with a disposition of Criminal Jeopardy and a charge of Handgun: Use in Committing a Crime resulting in Probation Before Judgment." The affiants also noted that their supervisor had discovered two properly documented handguns during a bar inspection of Jaffes in early 2006.
The affidavit concluded with the detectives stating their belief that Faulkner was using his person as well as Jaffes, his "observed address" at Plainfield Avenue, the Mitsubishi, and the Audi "for the illegal ... storage, transportation and concealment of controlled dangerous substances, related paraphernalia and suspected proceeds from [narcotics] sales"; and that documentation of the drug trafficking would be found at Faulkner's registered address, on E. 28th Street.
The affidavit was accompanied by statements of "expertise" for both affiants. The statement prepared by Detective Rutkowski included the following:
As a result of the extensive knowledge gained by training, conversations, and the actual experience executing [narcotics-related] warrant[s] [and] arrests, your Affiant can make certain statements relating to methods ... narcotics trafficking. Individuals involved in the narcotic[s] trade often use numerous different addresses to facilitate and aide in the furtherance of their illegal activity. Official documents and various personal documents and identification can verify this.
(Emphasis added.) Detective Rutkowski's statement went on to list the various types of evidence often recovered from addresses used by narcotics traffickers, including narcotics, objects used for processing and storing narcotics, U.S. currency, documents, and firearms.
On August 2, 2007, a judge in the District Court for Baltimore City, after reviewing the applications and attached documents submitted by the detectives, issued an arrest warrant for Faulkner and search warrants for Jaffes, the Plainfield Apartment, the E. 28th Street address, and the Mitsubishi and Audi automobiles. The warrants were executed on August 4, 2007. In the Plainfield Apartment, the detectives found four clear plastic bags containing what was later confirmed to be cocaine with street values ranging from approximately $300 to $2,000; several firearms, including one with an obliterated serial number; ammunition; U.S. currency stored in a shoe box; a digital scale with suspected cocaine residue; and other items associated with the processing and packaging of cocaine. In addition, they recovered various documents listing Faulkner's name in association with that address.
The detectives also seized property from Jaffes, the E. 28th Street address, the Mitsubishi, and Faulkner himself.2 Only the search of the Plainfield Apartment uncovered narcotics and weapons, however.
Faulkner was charged with several crimes, including possession with intent to distribute cocaine and possession of a firearm during a drug trafficking crime. He moved to suppress the evidence recovered from the Plainfield Apartment as the product of an invalidly issued warrant. At a suppression hearing on June 8, 2009, the court granted Faulkner's motion.
In so ruling, the motion judge reasoned that there was nothing in the affidavit linking Faulkner's narcotics trafficking activities to the Plainfield Apartment, and therefore the warrant for that location was not issued upon probable cause. In particular, he commented that there is nothing unusual about a person's returning to his home at night. The judge observed: Further, the motion judge found the affidavit so lacking in probable cause to search the Plainfield Apartment...
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